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Neurolaw gets you thinking

December 8, 2008 - Lee Smith
The Tom Cruise movie "Minority Report" offers an examination of the interaction of free will/determinism and law enforcement. The movie's policemen respond to crimes before they happen, arresting those "about" to commit murder. The writer's sci-fi embellishment allows the cops to know what will "happen" in the future.

The movie is poignant in some respects, although, of course, far-fetched. Today's advances in science, however, are showing the directions in which technology and the law will be intertwined. In fact, there is a whole new name for this: neurolaw. It is based on brain-imaging that shows not only the structure of the brain, but its inner workings, ostensibly. Criminal intent, and therefore responsibilty, are involved.

The uses and abuses of neurolaw seem fairly straightforward: An attorney hauls a load of brain images before an awed jury and argues that his client isn't responsible for his actions because of the obvious evidence of the scan. Vice versa for the prosecutor.

The most vital aspect is the validity of the scans. What are they really telling us, and with what degree of error? Second, there are existing brain scans that serve as mitigating factors in law: Someone with a tumor may act maliciously when they would not have without the lesion. There is also the issue of self-incrimination. Must you submit to scans? This all seems worth deeper examination.

But beyond all the intricacies of medicine and law, there is justice. Citizens want to know that people who harm or kill others are not going to be in a position to do so again. Whether one pleads insanity, offers a mitigating factor or uses a futuristic brain scan, the essential ingredient of justice is removing the bad actor from the scene. If a justice system fails to protect citizens from future actions by known bad actors, then it is a failure.


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